Category Archives: 18 USC 2257

Does a person have a copyright in her picture if she has not obtained a registration from the United States Copyright Office? The answer is yes and no.

Generally, a person will have a common law copyright in a picture that they have taken. A good example is a “selfie,” i.e. a picture taken of oneself with a cell phone. Under certain circumstances, the common law will provide enough rights to allow someone to send a cease and desist letter if a picture is being used without consent.

However, the better approach is to file an application with the United States Copyright Office. The reason is that this provides for enhanced protections (statutory damages and attorney’s fees reimbursement).

Are internet publishers responsible for advertisements for potential sexual liaisons with minors? In the middle of last year, a US District Court for the District of New Jersey found that a New Jersey Statute creating such responsibility was likely unconstitutional. After that ruling, the parties negotiated and earlier this month, they settled. As part of the settlement, there will be a permanent injunction prohibiting the statute from being enforced.

The case, Backpage.com LLC v. Hoffman et al., United States District Court for the District of New Jersey (Civil Action No.: 2:13-CV-03952), involved a challenge by Backpage.com and Internet Archive seek to avoid punishment for posting such advertisements. The statute in question, N.J.S.A. 2C:13-10, New Jersey’s Human Trafficking Prevention, Protection, and Treatment Act, sets forth strict anti-trafficking laws. It states,

A person commits the offense of advertising commercial sexual abuse of a minor if:

(1) the person knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor; or

(2) the person knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor.

Violators could be guilty of a first-degree criminal offenses. A publisher could not hide behind the defense that they were unaware of the depicted person’s age without substantial proof; they would need to demonstrate they made a legitimate attempt to determine the minor’s age by requiring identification.

Backpage.com and Internet Archive proposed an order to permanently enjoin enforcement of N.J.S.A. 2C:13-10. They wanted to stop its enforcement perpetually on the grounds that it violated the Communications Decency Act (which treats online service providers as not responsible for third party materials) and the First and Fourteenth Amendments. They claimed the provision violated free speech and due process as well as imposed criminal liability without proof of intent. They also asserted that it would be impractical to demand identification of everyone posting such online advertisements.

Ultimately, the parties settled for a permanent injunction preventing enforcement of the statute.

[T]he Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard – the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.

Id. at 2.

The basis for the ruling was that the government could not demonstrate that the requirement met the constitutional standard. As the Court stated, “[g]iven these two streams of evidence in the record – demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home – the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable …” Id. at 69.

The Court focused on the fact that many producers of adult content keep the records in their homes. Therefore, the requirement that the FBI be allowed to inspect the records without advance notice meant that the residents would be burdened by the need to remain on premises to allow access. This burden was found to be unconstitutional.

Does aproducer of a breastfeeding instructional video have to abide by §2257? Whatabout the mother who volunteers to allow herself and her baby to be filmed? Howabout somebody who illegally uses the breastfeeding video to create an adultvideo?

This wasaddressed in a case heard in M.S. v. Meredith Corporation, United StatesDistrict Court of New Jersey, August 2,2012 (Civil Action No. 11-cv-5180). In that case, the plaintiff, a new mother,volunteered to allow the defendant, a media and marketing corporation that aimsat educating women on various topics, film a “how to” video for breastfeeding.The defendant did not pay the plaintiff for filming the video; the plaintifffelt as if her experience as a new mother could help women who are consideringbreastfeeding. According to the plaintiff, the defendant promised her thatneither her name nor that of her daughter would be revealed. The plaintiff alsoclaimed that the defendant told her the video would only be played on thedefendant’s website and on cable television for educational purposes.

Unfortunately,while searching her name on the internet, the plaintiff discovered that thevideo of her breastfeeding was being displayed by an adult website. Thatwebsite included both her full name and her daughter’s first name on the video.A man named “Nizard” was the culprit. He had access to the video because thevideo had been posted on YouTube by the defendants. This was done in spite ofthe fact that plaintiff had been assured it would not.

18 USC §2257makes it a federal crime to fail to comply with certain record keeping andreporting requirements. Such requirements must be followed when one produces a film,book, magazine etc. which includes “sexually explicit conduct.” “Sexuallyexplicit conduct” is defined under §2256 (2)(A):

“Sexually explicit conduct” meansactual or simulated—

(i) sexualintercourse, including genital—genital, oral-genital, anal—genital, or oralanal, whether between persons of the same or opposite sex.;

(ii) bestiality;

(iii) masturbation;

(iv) sadisticor masochistic; or

(v) lasciviousexhibition of the genitals or pubic area of any person;

Applyingboth §2257 and §2256, it would appear that only Nizard would be liable underthe statute; not the mother nor the defendant. The only way the mother or thedefendant would be liable under §2257 is if breastfeeding were considered“sexually explicit conduct.” Interpreting the statute makes it clear that it isnot. Breastfeeding clearly does not fall into one of the sexual acts listed in§2256. While the statute states that sexually explicit conduct includes “sexualintercourse, including genital—genital, oral-genital, anal—genital, or oralanal, whether between persons of the same or opposite sex” which clearlybreastfeeding is not. Further, one would be hard-pressed to argue before aCourt that breastfeeding a newborn has a sexual component in the first place;hence the intent of the statute clearly is not to include it within the law’spurview.

However,when Nizard illegally added the video to an adult website, he entered the realmof §2257. Although, the pornographic scenes which Nizard combined with the breastfeedingvideo are not described in the case, it is likely that such scenes involve atleast one of the acts listed in (i) through (v) of §2256. Thus, under suchassumption, a §2257 claim against Nizard for failure to follow reportingrequirements would be available against him.

Recently, an enterprising producer of adult content created a pornographic film utilizing the Sims cartoon characters. While of course, this is likely a trademark and copyright violation – since it is doubtful that the owners of the Sims software would license their intellectual property for creating an adult film – the question arises as to whether it is also a violation of 18 U.S.C. 2257.

The answer is not straight forward. The video appears to utilize pilfered content from the Sims imagery which is not adult oriented. However, it intersperses that material with actual adult content involving actual actors. Therefore, it is likely that 18 U.S.C. 2257 would apply.

We would be interested in hearing any thoughts that readers of this blog might have on this topic.

The Third Circuit of the United States Court of Appeals recently was presented with another in a series of challenges to 18 USC Section 2257. Free Speech Coalition Inc., v. Attorney Gen. of the United States, No. 10-4085 (3d Cir. April 16, 2012). Importantly, the lower District Court had dismissed the case entirely. However, the Third Circuit vacated much of that determination and remanded the case back to the District Court for further proceedings.

The case was rather involved, and there were a number of bases for the remand. However, one of the more notable was that the claim under the First Amendment of the U.S. Constitution should not have been dismissed. The Third Circuit held that while 2257 was enacted to protect children from sexual exploitation, its breadth was so wide that it “appl[ied] to more than those producers who sexually exploit children. They mandate compliance by ‘[w]hoever produces’ sexually explicit depictions regardless of the performers actual or apparent ages.” 18 USC 2257(a), 2257A(a).

Importantly, the Third Circuit did not opine as to whether the statute was so over broad that it violated the First Amendment, but it did hold that the plaintiff should have had the opportunity to develop a record to seek to make such a case.

The requirements of 18 U.S.C. §2257 (“2257”) impose certain record-keeping obligations on the producers of sexually explicit material. The constitutionality of the statute has been challenged in recent years, but courts have usually indicated that 2257 is constitutional. An interesting example of such a challenge was heard by the U.S. Court of Appeals for the Sixth Circuit in 2009. Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. Ohio 2009).

That case focused on how the 2257 requirements apply to “swinger magazines,” which consisted of sexually explicit advertisements by couples who invite other couples to share sexual experiences. The appellants were the publishers and potential advertisers of the magazine. They brought an action against the U.S. Attorney General, seeking to enjoin enforcement of the 2257 record-keeping requirements as they relate to the content of a swingers’ magazine content.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in the required manner. The appellants in Connection argued that requiring the publishers to maintain records of their advertisers’ identities and ages was an infringement of their freedom of speech. They argued that the statute was unconstitutional both as applied to the publishers and the advertisers. They also took the position that it was unconstitutional on its face. The U.S. District Court for the Northern District of Ohio granted summary judgment in favor of the Attorney General. The publishers and potential advertisers appealed to the U.S. Court of Appeals for the Sixth Circuit.

In determining the constitutionality of the statute, the Court of Appeals applied an intermediate level of scrutiny. A statute survives intermediate scrutiny if it:

advances a “substantial” government interest;

does not “burden substantially more speech than is necessary;” and

leaves open “ample alternative channels for communication.”

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The Court held that the statute was constitutional. First, the Court held that the statute was not a presumptively invalid content-based regulation of speech. The Court found there to be a substantial governmental interest in deterring the production and distribution of child pornography. It listed several reasonably tailored ways the statute’s universal age-verification requirement advanced the interest. This included ensuring that primary producers confirm the age of their performers and prevent children from attempting to pass themselves off as adults. As a result, it found the statute justified in regulating the records of those producing sexually explicit material.

The magazine and its advertisers further argued that the law was overbroad and would be unconstitutional as applied to a magazine that depicted only “mature adult models” who “are clearly and visibly not minors.” Connection at 336. However, the Appellate Court did not find this to be sufficient to justify declaring the statute invalid. It found that hypothetically unconstitutional applications of the statute to sexually explicit depictions of obviously mature adults did not demonstrate the level of substantial over breadth that is necessary for invalidation.

It appears unlikely that 2257 will be found unconstitutional anytime soon. Therefore, it is important that those producing sexually explicit films and other materials become familiar with the statute’s requirements in order to avoid criminal liability.

In order to avoid criminal liability under 18 U.S.C. §2257 (“2257”) and its related regulations (“Regulations”), such as 28 C.F.R. 75, it is important for those producing adult explicit content to be familiar with the basic identification rules that the law requires.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in a prescribed manner.

As required in Section 75.2 of the Regulations, the actor documentation should be in the form of a picture identification card. That Section requires that when producing adult content, the Custodian of Record must maintain documentation of “the legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction.” 28 C.F.R. 75. Section 75.19(b) specifically defines the requirements for the picture identification card as follows:

1) It must be issued by the United States, a state government (or political subdivision thereof, or a U.S. territory)

2) It must bear the photograph, name and date of birth of the person identified.

3) It must provide specific information that is sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (“Green Card”), or employment authorization document issued by the United States, a driver’s license or other form of identification issued by a state or District of Columbia; or a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the United States at the time of original production and the producer maintaining the required records, whether a U.S. citizen or not, is located outside the United States on the original production date.

4) It must be valid as of the original production date.

28 C.F.R. 75.19(b).

In addition, the producer should maintain the identification documentation in the prescribed manner. Producers are required to include and keep a copy of the document that was examined before the creation of the adult work within a record-keeping system as detailed in section 75.2(a)(1) of the Regulations. That Section states that “the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined.” 28 C.F.R. 75.2(a)(1).

Examples of identification documents that comply with the regulations include:

1) A valid U.S. passport (or, if the performer and producer are both outside the U.S., a valid passport issued by a foreign government).

2) A valid state identification card.

3) A valid state driver’s license.

4) A valid identification from either a state college or university, so long as it contains a clear picture of the person identified along with their legal name, date of birth and document identification number or some other information that allows one to confirm the document’s validity.

Examples of identification documents that might not sufficiently comply with the regulations include:

1) A Social Security card.

2) A valid passport issued by a foreign country for any performer where the performance that creates the content subject to 2257 regulations is in the U.S.

3) A valid identification from a private college or university.

4) An identification document that does not contain a clear picture of the person identified.

5) An identification document that is invalid.

The consequences for violating 2257 are very serious, including the possibility of penalties and incarceration. Knowing the law’s requirements, and what forms of identification are sufficient to meet those requirements, are critical to complying with the law.

Though 18 USC §2257 (“2257”) imposes well-known requirements regarding record-keeping and labeling on producers of sexually explicit material, it also places certain rules on those who are not directly involved in the production of the content. 18 U.S.C. §2257. Though these individuals play less of a role in the production of the material, secondary producers and non-producers can sometimes find themselves facing penalties just as serious as those faced by producers found in violation of the statute.

One example of such a requirement is found in section (f) of 2257, which imposes obligations on distributors of adult content. This “2257 distributor obligation” applies to sellers and distributors of the content, even though they might not be held to the same requirements as a primary producer of such material.

Specifically, section (f) states that it shall be unlawful:

“(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, which –

(a) contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and

(b) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

which does not have affixed thereto…a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept.”

18 U.S.C. §2257(f)(4).

This language extends a responsibility to certain individuals who may not be primary producers who are subject to the more well-known record keeping requirements. An individual who uploads the content to a website server (thus becoming a secondary producer) can fall under the purview of section (f) if the content being uploaded is subject to 2257 regulations. This extends to any individual who knowingly offers, sells or transfers the materials in some way.

The Department of Justice has demonstrated that a 2257 violation is a fully chargeable offense, so the lack of attention to section (f) does not make the crime any less serious in the eyes of the law. It is important for those handling materials subject to the 2257 regulations to realize the statute requires all distributors – even those on a secondary level – to display a proper compliance statement on the material that indicates where the required 2257 records are kept.

As the adult entertainment industry increases its presence on the web and adult sites enable users to interact by video with performers, it is important to keep in mind that 18 USC §2257 (“2257”) could reach certain aspects of such services. One example of this is the “live chat” capability that has become a popular aspect of the adult entertainment.

Live chats often include a performer who provides live content for an adult cam website, with the user able to watch – and interact with – the performer. The requirements of 2257 might not initially come to mind when one thinks of such live chat capabilities. However, the law’s language suggests that not only does it apply to such situations, but the individual performing the sexual acts on camera could very likely be considered the producer of the material. As a producer, the performer would be the one responsible for complying with the 2257 requirements regarding proper labeling and record-keeping. In other words, there could be criminal liability for failing to adhere to the 2257 requirements.

A “primary producer” is one “who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.” 28 CFR 75.1(c)(1). Under this language, it is likely that one who is performing the live sexually explicit conduct would be considered a primary producer of the content. As such, the 2257 regulations – including record-keeping and labeling – would attach to the person performing the sexual acts on the web cam.

It is also possible that the ramifications from a performer failing to comply with 2257 could extend beyond that individual. For example, consider an owner of an adult entertainment website that enters into an agreement with a live cam performer. The individual agrees to perform sexual acts on the web cam and the company agrees to aggregate and broadcast the content on its site. The company could potentially be liable for a failure to comply with 2257, either (a) as a distributor failing to comply with its own 2257 requirements or (b) as an entity that aided and abetted the performer in his or her violation of the statute.

Though live webcam performers may not automatically come to mind as potential targets of 2257 prosecutions, the statute’s language suggests the requirements could certainly apply to such performers. As primary producers, the labeling and record-keeping requirements will likely attach to performers and, potentially, to sites that contract to broadcast the performances.

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Internet Picture Removal[MUSIC PLAYING] One of the issues that has come up again and again in our practice relates to the wrongful posting of information about another person on the Internet. This is another example of how the law has simply not kept pace with the developments that have occurred in the 21st century. It used to be that when someone gossiped about another person, or said something that wasn't true, that ancient concepts of defamation, concepts of interference with someone else's business or prospective economic advantage, these common law concepts would protect the person. It used to be that when you gossiped about somebody else, you did it in the town square. You did it at a community meeting. You did it behind closed doors. Needless to say, that's not the situation anymore. Now when someone wants to say something about someone else that's not true, when someone wants to defame them and hurt their reputation, all they need is a computer, an Internet connection, and a bad motive, and they can literally make a worldwide comment about this person. They can post something that can be seen in every country in the world. Millions of people. How do you deal with that from a legal perspective? And the answer is that there are techniques that we can use. They are not perfect and they're not complete. But there are techniques. For example, what was it that this person said? Was it opinion? Or was it a fact? And if it was a fact, can it be proven to be an untrue fact? Can it be proven that this person knew that it was untrue or that it was said negligently? All these questions come into play in the context of something that is said that should not have been said because it was possibly defamatory. But there's another level. And the other level is, can we find a way to say that this is also a violation of intellectual property rights? In other words, think about it. Did this person lift a picture from a website that they didn't own? Or took it from a camera or cell phone if they didn't have access to? And they should not have access to it. And somehow, they got a hold of it. And they posted it as part of the possibly defamatory material. Wouldn't that begin to state a claim for infringement of intellectual property? And if so, is there a way of being creative in the representation in the legal analysis so that we're not limited to whether this thing was true or not? Certainly we're not limited to whether it was a bad thing to say or not. We know that. It was a bad thing to say. But also is there legal significance to what they did that goes beyond the truth of the matter? These are the sorts of questions that we ask when we deal with people who are the victims of wrongful posting. There's this new concept of revenge pornography that is taking our culture by storm. In essence, it's someone taking a picture, often from a girlfriend or boyfriend, a picture that was taken in the privacy of that relationship. And after that relationship is over, that one of the people taking and posting the picture online, making it publicly available in order to humiliate or otherwise punish the person after breaking up with them. Hence the term revenge pornography. Unfortunately, the minute a picture is taken and shared on the Internet, it becomes instantly available to an exponential number of people. Once it's on one website, a lot of times these adult websites have a tendency of just stealing pictures. So it's not the fact that they have the rights to it and are going to prohibit their competitors from taking it. But there tends to be a common practice in the industry of it being on one website. The next website steals it, posts it, and it just is an ongoing effect where one person posted one picture. And all of a sudden, it's everywhere. And now you're dealing with innumerable websites that you now have to contend with to get the picture actually removed from the Internet. Unfortunately, this is a little bit of a unique legal situation in that the clients are often dealing with a huge emotional undertone to this representation. They are often coming to us having been humiliated. They are embarrassed that the pictures are out there. They don't want their employer, their kids, their kids' friends, or even sometimes their spouses to know that these pictures exist. We have to sit there and say, very dispassionately, very objectively, is this the kind of thing that we'll be able to convince a judge violated the law? Our firm welcomes inquiries about this sort of thing. It's something that we take very seriously. And it's something that we like to help with as necessary. [MUSIC PLAYING]